United States District Court, D. South Carolina, Greenville Division
T&S BRASS AND BRONZE WORKS, INC. and ENVIROPURE SYSTEMS, LLC, Plaintiffs,
JAMES SLANINA, LINDA BASINGER, individually and d/b/a ADVANTAGREEN, ADVANTAGO, INC., and OPUS DISTRIBUTION, INC., Defendants.
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
DENYING PLAINTIFF'S MOTION FOR SECOND TEMPORARY
RESTRAINING ORDER, EMERGENCY HEARING WITH TESTIMONY, AND
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
an action for misappropriation of trade secrets and
trademarks and related claims arising out of the business
relationship between Plaintiffs and Defendants. The Court has
jurisdiction under 28 U.S.C. §§ 1331 and 1367.
matter is before the Court for review of the Report and
Recommendation (Report) of the United States Magistrate Judge
suggesting to the Court Plaintiffs' Motion for Second
Temporary Restraining Order, for an Emergency Hearing with
Testimony, and for Sanctions (Plaintiffs' Motion) be
denied. The Report was made in accordance with 28 U.S.C.
§ 636 and Local Civil Rule 73.02 for the District of
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
Magistrate Judge filed the Report on December 29, 2016, ECF
No. 77, and Plaintiffs filed their objections on January 3,
2017, ECF No. 80. Defendants James Slanina (Slanina), Linda
Basinger, and Advantago, Inc. filed a reply to
Plaintiffs' objections on January 17, 2017, in which they
insist the Court should adopt the Report. ECF No. 109. The
Court has carefully reviewed Plaintiffs' objections and
holds them to be meritless.
set forth five objections to the Report. Under 28 U.S.C.
§ 636(b)(1), a district court is required to conduct a
de novo review of those portions of the Magistrate
Judge's Report to which a specific objection has been
made. The Court need not conduct a de novo review, however,
“when a party makes general and conclusory objections
that do not direct the court to a specific error in the
[Magistrate Judge's] proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b).
Thus, the Court will address each specific objection to the
Report in turn. As provided above, however, the Court need
not- and will not-address any of Plaintiffs' arguments
that fail to point the Court to alleged specific errors the
Magistrate Judge made in the Report.
first contend the Magistrate Judge erred in failing to
address the evidence allegedly showing Slanina stole a
deposit from one of Plaintiffs' customers and used a
fraudulent bank account to conceal his actions. ECF No. 80 at
1. Plaintiffs are mistaken. The Report summarizes the
arguments in Plaintiffs' Motion regarding the allegedly
wrongful conduct of Defendants and specifically references
Plaintiffs' allegation a deposit from a customer was
deposited into an account owned by Slanina. See ECF
No. 77 at 1-2. The Magistrate Judge's summary of the
arguments set forth in Plaintiffs' Motion reveals the
Magistrate Judge considered all of the evidence proffered by
Plaintiffs. Furthermore, Plaintiffs fail to analyze why this
purported evidence must change the Magistrate Judge's
recommendation. Therefore, the Court will overrule
Plaintiffs' first objection.
next reference the Magistrate Judge's holding
“[t]he court will not engage in discovery on the
plaintiff's behalf.” ECF No. 80 at 1 (internal
quotation marks omitted). Plaintiffs retort they “are
not seeking discovery in the normal sense” and restate
their argument the Court should require Slanina to testify.
Plaintiffs neglect to explain why the Court must require
Slanina to testify at this stage and why Plaintiffs cannot
discover the desired information through normal discovery
procedures. Consequently, their objection is not a meaningful
counter to the Magistrate Judge's wise holding the Court
will not conduct discovery for Plaintiffs. Thus, the Court
will also overrule Plaintiffs' second objection.
Plaintiffs' third and fourth objections, they argue the
Magistrate Judge incorrectly held the information they seek
can be requested through normal discovery procedures, and the
TRO and criminal investigation already in place adequately
protect Plaintiffs' interests. Id. at 2.
Plaintiffs contend the delay inherent in normal discovery as
well as Slanina's “history of obfuscation”
render it “unlikely, at best, that Plaintiffs will get
anything of value in time to stem more irreparable
harm.” Id. Plaintiffs further claim they are
receiving inquiries from companies and “need to learn
the scope of Slanina's conduct now.” Id.
Court agrees with the Magistrate Judge's holding the TRO
already in place adequately protects Plaintiffs'
interests. The TRO includes provisions requiring Defendants
to preserve all relevant documents and communications and
comply with all obligations of their Covenants Agreements.
ECF No. 25 at 2-3. It also includes provisions prohibiting
Defendants from using or disclosing Plaintiffs' trade
secrets and property and developing, marketing, selling or
exercising any ownership over products or services in
violation of their Covenants Agreements. Id. Thus,
the TRO prevents Defendants from further engaging in the type
of conduct complained of by Plaintiffs.
Court likewise agrees with the Magistrate Judge's holding
the information sought by Plaintiffs can be requested through
normal discovery procedures. As stated above, Plaintiffs'
interests are adequately protected by the current TRO while
Plaintiffs await discovery responses. Moreover,
Plaintiffs' prediction Slanina will obfuscate discovery
requests is insufficient to demonstrate the Court should
enter a second TRO. In the event Slanina is non-responsive to
discovery requests, the proper remedy is a motion to compel,
not an additional TRO. For the foregoing reasons, the Court
holds Plaintiffs' third and fourth objections to be
without merit as well.
Plaintiffs' final objection, they claim the Magistrate
Judge failed to address their request for sanctions. ECF No.
80 at 3. The Magistrate Judge, however, clearly recommends in
the Report that Plaintiffs' request for sanctions be
denied. ECF No. 77 at 3. The decision whether to impose
sanctions under Rule 11 lies within the discretion of the
district court. Brubaker v. City of Richmond, 943
F.2d 1363, 1374 (4th Cir. 1991). The Court agrees with the
Magistrate Judge's recommendation Plaintiffs' request
for sanctions should be denied. Consequently, the Court will
overrule Plaintiffs' fifth objection.
thorough review of the Report, Plaintiffs' objections,
and the record in this case pursuant to the standard set
forth above, the Court overrules Plaintiffs' objections,
adopts the Report, and incorporates it herein. Therefore, ...